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Monday, February 14, 2011

Hot topic: Can cities regulate private wells?

Let’s talk about wells and city water. Does your city provide water to the community? What if one of the bigger businesses in your city decides to drill their own well, not to use for drinking water (bringing up that word I can never remember how to pronounce – potable, meaning drinkable) but to wash cars or clean equipment? What if, to save money, all the townhouse associations in your city want to drill their own private wells and have the greenest grass on the street?

What can cities do about it? Since 1949 cities have had authority to regulate “the use of wells, cisterns, reservoirs, waterworks, and other means of water supply” in city boundaries. Minn. Stat. 412.221, subd. 11. This authority includes the power to prohibit private wells in a city.

Zoning law provides yet more authority for cities to prohibit private wells or to prescribe areas of the city where private wells may be located on a parcel of property. Minn. Stat. § 462.357, subd. 1. City zoning authority is broad and certainly contemplates regulation of structures including private wells.

Is this news? Yes. In the past few years, cities were receiving letters and calls from the Minnesota Department of Health (MDH) questioning city authority to prohibit or regulate private wells used for irrigation or anything other than drinking water.The confusion stems from laws passed in 1989 that give MDH the authority to regulate the construction, repair and sealing of wells. Minn. Stat. § 103I.111. This ’89 law surely preempts city regulation of these activities – but it does not impinge on a city’s ability to prohibit or regulate well drilling in city boundaries. Lawyers love to split hairs but here we say yes to both city and state regulation.In short, MDH only says HOW to install a well assuming there can be one, and whether there can be one or where a well might be allowed in a city is a city matter.

Why does this matter? Minnesota has more freshwater than any of the other contiguous 48 states.[1] But the supply is not endless. City water systems must protect groundwater supplies and conserve water resources. If all or even a few of the businesses or townhouse associations in your city drill their own wells and use many gallons of water it will quickly cause problems for city water systems.

So what should cities do to protect local water supplies and infrastructure? To protect your city water supply and system, pass an ordinance that deals with private wells. Work with your city attorney to include wells used for irrigation, sprinkling or other uses, not just regulating wells for drinking water. The statutes and case law make it clear that cities have authority to regulate the use of wells to the extent of prohibiting them, and requiring the property owner connect to the city's water system in the interest of health safety and welfare. But remember, the limited tasks of constructing, repairing, and sealing the well are subject to MDH regulatory authority.

3 comments:

Conservation water rates (see March 14th blog) have been one factor causing larger water users to pursue private wells. Many cities have historically used their water rates as an economic development incentive and give large industrial users a reduced rate. The philosophy has been that the more you use, the cheaper it is per gallon to deliver the water. Now the law requiring conservation rates has tipped that premise on its head.

Besides ordinances prohibiting private wells, we’ve had some success in setting rates that discourage the practice. Commercial and industrial users can have lower rates than others, as long as the commercial water rates are structure to promote conservation.

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